Dimkovski v Ken's Painting and Decorating Services Pty Limited and 2 ors
[2002] NSWSC 49
•12 February 2002
CITATION: Dimkovski v Ken's Painting & Decorating Services Pty Limited & 2 ors [2002] NSWSC 49 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): SC 20013/98; 20107/00 HEARING DATE(S): 12 February 2002 JUDGMENT DATE: 12 February 2002 PARTIES :
Acko Dimkovski by his tutor The Protective Commissioner of New South Wales (Plaintiff)
Jordan Trajkovski (Plaintiff)
Ken's Painting & Decorating Services Pty Limited (1st Defendant)
Lynden Constructions Pty Limited (2nd Defendant)
National Hire Pty Limited (3rd Defendant)JUDGMENT OF: Dunford J
COUNSEL : A Morrison SC / A McSpedden (Plaintiff - Dimkovski)
C Evatt / M Rollinson (Plaintiff - Trajkovski)
L King SC / M Jenkins (1st Defendant)
R Cavanagh (2nd Defendant)
W Fitzsimmons / J Ryan (3rd Defendant)SOLICITORS: McBride Harle & Martin (Plaintiff - Dimkovski)
Carters Law Firm (Plaintiff - Trajkovski)
William K Chambers (1st Defendant)
Henry Davis York (2nd Defendant)
Hunt & Hunt (3rd Defendant)CATCHWORDS: EVIDENCE - admissibility - industrial accident - claim for common law negligence - breach of duty imposed by statute - exclusion of action for breach of statutory duty - admissibility of breach of statute as evidence relative to common law negligence - evidence of which relevant facts - EVIDENCE - admissibility - industrial accident - action for common law negligence - plea of guilty to breach of statute - which facts admitted by plea LEGISLATION CITED: Occupational Health and Safety Act 1983 (since repealed), ss 15, 22, 53
Evidence Act 1995, s 81CASES CITED: Abela v Giew (1965) 65 SR (NSW) 485
The Queen v Obrich [1999] HCA 54, 199 CLR 270
Strohfeldt v Francis [1968] 1 NSWR 251
Harrison v Government Insurance Office of NSW (1992) 16 MVR 156
Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438DECISION: Evidence admitted.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
Tuesday, 12 FEBRUARY 2002
20013/98 Acko DIMKOVSKI by his tutor the Protective Commissioner of NSW v Ken’s Painting & Decorating Services Pty Limited & 2 ors
20107/00 Jordan TRAJKOVSKI v Ken’s Painting & Decorating Services Pty Limited
JUDGMENT
1 HIS HONOUR: Mr Evatt, counsel for the plaintiff Mr Trajkovski, seeks to tender documents to establish that on 28 August 1998 the first defendant, Ken's Painting and Decorating Services Pty Limited, pleaded guilty before the Industrial Relations Commission in Court Session to a charge under s 15(2)(a) of the Occupational Health and Safety Act 1983 (since repealed) (“the Act”) in that it "failed to provide or maintain plant or systems of work that are safe and without risks to health of employees at their place of work".
2 Section 15(1) of the Act requires that every employer ensure the health, safety and welfare at work of employees. Subsection (2) is as follows:
- “ Without prejudice to the generality of subsection (1), an employer contravenes that subsection if he fails
- (a) to provide or maintain plant and systems of work that are safe and without risks to health.”
3 The section provided a maximum penalty of 5,000 penalty points in the case of a corporation or 500 penalty points in any other case for its breach.
4 Section 22 provided, so far as presently material, that nothing in that Division (which included s 15) should be construed as conferring a right of action in any civil proceedings in respect to any contravention, whether by act or omission, of any provision of the Division.
5 Mr Evatt and Mr McSpedden, who made submissions on behalf of the other plaintiff Mr Dimkovski, have submitted that, although s 15 cannot give rise to a cause of action for breach of statutory duty, evidence of a breach of it is admissible as evidence to support a claim for common law negligence in the same way as a breach of a traffic regulation, although not giving rise to a cause of action for breach of statutory duty, can constitute evidence of common law negligence or contributory negligence in motor vehicle collision cases; and that such breach can be proved by evidence of a plea of guilty to a charge alleging such breach.
6 The principle was summarised by the Full Court in Abela v Giew (1965) 65 SR (NSW) 485 at 489 as follows:
- "In an action arising out of a collision on the highway between two vehicles, or between a vehicle and a pedestrian, the circumstances that the collision has been caused or contributed to by a breach of a statutory regulation of traffic is evidence of negligence, or of contributory negligence, as the case may be. But it is evidence only, to be taken into consideration with all the other circumstances, and of varying weight according to the other circumstances. It is not, that is to say, conclusive evidence. Nor is it of itself a cause of action, on the one hand, or, on the other hand, what might be termed “statutory contributory negligence” barring the action.”
- See also Strohfeldt v Francis [1968] 1 NSWR 251 at 254, Harrison v Government Insurance Office of NSW (1992) 16 MVR 156 and Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438.
7 Section 22 has the effect, in my view, of preventing any action being brought for breach of statutory duty where the statutory duty relied on is an alleged breach of s 15 or any other section in Division 1 of Part 3 of the Act. But that is as far as it goes, and it does not affect the evidence which may be adduced in relation to a cause of action for common law negligence.
8 An admission is admissible as an exception to the hearsay rule: Evidence Act 1995 s 81. A plea of guilty to a criminal charge constitutes an admission of all of the elements of the offence charged: The Queen v Obrich [1999] HCA 54, 199 CLR 270 at 275. The offence charged in the present case is not one which in terms requires the employer to take reasonable care, and so the plea of guilty is not evidence of a failure to take reasonable care; but it is, as I say, evidence of the essential elements of the offence charged.
9 Those elements include in the present case:
- (a) Each of the plaintiffs were at the relevant time employed by the first defendant (which is admitted in the present cases),
(b) That they were on the relevant day injured at their place of work (which is not seriously in dispute), and
(c) That the plant and the systems of work were not safe and without risks to the health of the plaintiffs.
10 Although s 15 did not impose a standard of reasonable care but an absolute duty, it was a defence to a charge under the section if the defendant proved (a) that it was not reasonably practicable to comply with the provision of the Act ... the breach of which constituted the offence; or, (b) that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: s 53. It follows that by the plea of guilty, the first defendant has also admitted that it has had no defence to the charge under s 53. In other words, it has admitted that it was reasonably practicable to comply with the provisions of s 15; that is, to provide and maintain plant and systems of work which were safe and without risks to the health of the employees, and that this was not a case where the first defendant had no control over the causes giving rise to the accident and against which it was impracticable to make provision. Of course the plea of guilty is not conclusive evidence against the first defendant of any of these matters; but it is admissible as evidence of those facts.
11 I therefore, out of the bundle of documents tendered, admit the summons and that part of the judgment which consists of the third paragraph on the second page which records the plea of guilty.
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